Daily Archives: July 9, 2020

This is a note about a recent decision from Master Jolley, Lipovetsky v Sun Life Assurance Company of Canada, 2018 ONSC 1649, touching on:

1. the duty to disclose particulars on surveillance before the examination for discovery; and
2. what must be included in an updated affidavit of documents.

Quick Take-Away
If surveillance is disclosed before the defendant’s examination for discovery, you probably only have to disclose enough information to justify a claim for privilege. Further particulars can be obtained at the examination for discovery. But there are cases out there where courts required more particulars to be provided because the surveillance was disclosed after the defendant’s examination for discovery.

A technical read of the Rules might require one to disclose every single relevant document in its possession, including documents the opposing party provides during the litigation process. But the courts are directed to construe the Rules liberally and avoid laborious and expensive tasks that do not serve the spirit of the Rules. Your updated or supplementary affidavit of documents probably does not have to list documents received from the other parties in the litigation during the litigation process.

Surveillance Particulars
A litigant is required to disclose enough particulars of a document in its Schedule B to permit the opposing party to know whether to challenge the claim for privilege. The plaintiff argued a more expansive position. She claimed the Schedule B listing should include (or the defendant must disclose by correspondence) the following:

i. the times when each session of surveillance began and ended;
ii. the names and addresses of the individuals who conducted each round of surveillance;
iii. the times when any recording began and ended;
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v. the names or a general description of the websites that the surveillance investigators visited in connection with their surveillance of the plaintiff;
vi. the names of any organizations or individuals with whom the surveillance investigators communicated in relation to their surveillance of the plaintiff;
vii. the dates on which those communications occurred; and
viii. whether any individuals or organizations provided oral or written statements to the surveillance investigators as part of the investigation.

Master Jolley disagreed. The Court concluded that, as is the usual course, plaintiff’s counsel has the opportunity to ask the defendant about those particulars during the upcoming examination for discovery of the defendant. This motion could have turned out differently if examinations for discovery had already occurred (see for example Cromb v Bouwmeester, 2014 ONSC 5318).

I think the ruling fits nicely with the Court of Appeal’s comment in Iannarella v Corbett, 2015 ONCA 110: “… surveillance evidence can only serve to encourage settlement if it is disclosed in the affidavit of documents and the opposing party has the opportunity to seek particulars at examination for discovery.” Disclosure of surveillance in an affidavit of documents is only one part of the discovery process, not the complete answer.

Updated Affidavits of Documents
A litigant is required to disclose to the other party every document relevant to any matter in issue in an action that is or has been in its possession, control or power. The plaintiff suggested (i.e. argued then resiled from upon questions from the bench) that any updated/supplementary affidavit of documents must also disclose documents that have been exchanged in the litigation. In other words, the plaintiff wanted Sun Life to list in its affidavit of documents the documents provided by the plaintiff in answer to the plaintiff’s undertakings. This is consistent with a technical reading of the Rules, even if it goes beyond preventing “gotcha-styled” litigation.

Master Jolley preferred a different approach. She held that she was required to read the Rules liberally to secure the just, most expeditious and least expensive determination of a proceeding. The plaintiff’s position did not meet those ends.

Written by: Stephen J. Simpson, Lawyer